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Contractual Term: A provision in an agreement that creates a legally enforceable
obligation. It is a promissory statement.
Pre-Contractual Representation: A statement one party makes by words or conduct with
the intention of inducing another arty to enter into contract. It Does not impose
•A false statement of fact that causes the recipient to enter into a contract.
•It must be false WHEN IT IS MADE
•BREACH OCCURS ONLY WHEN ONE OF THE PARTIES FAILS TO
PERFORM PRECISELY AS PROMISED.
oMisstatement of Fact
Occurs if the speared claimed to state a fact.
People often make non-factual statements and opinions.
A personal opinion is not misrepresentation even if it is false.
If you offer an opinion within your area of expertise, the court may
consider this an implied statement of fact.
Future Conduct: is not a statement of fact as it is only an indication
of a person’s future intentions.
•It IS a misrepresentation if it is made fraudulently or if the
future conduct is described in terms of a present intention.
Misstatement does not occur because you inaccurately describes a
particular law We are all presumed to know the law. It may occur if
you inaccurately describe to CONSEQUENCES of the law.
•THEREFORE: opinions, statement of law, and future conduct are not treated as
Silence as Misrepresentation
•6 occasions when the failure to speak will amount to misrepresentation
1. WHEN SILENCE WOULD DISTORT A PREVIOUS ASSERTION
a. When as chance in circumstances affects the accuracy of an earlier
representation, the party that made the statement has a duty to disclose.
2. WHEN A STATEMENT IS A HALF-TRUTH
a. You can’t tell a half truth and remain silent on the other half.
b. You cannot give partial account if the unspoken works would substantially
alter the meaning of the actual statement.
3. WHEN A CONTRACT REQUIRES A DUTY OF UTMOST GOOD FAITH
a. The best example involves insurance contracts.
4. WHEN A SPECIAL RELATIONSHIP EXISTS BETWEEN THE PARTIES
a. When there is trust, or one person has special influence.
b. Doctor patient, lawyer client, teacher student blab la bla.
5. WHEN A STATUTORY PROVISION REQUIRES DISCLOSURE
6. WHEN FACTS ARE ACTIVELY CONCEALED
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